AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON NOVEMBER 1, 1996
REGISTRATION NO. 333-__________
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
KINARK CORPORATION
(Exact name of registrant as specified in its charter)
DELAWARE 71-0268502
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
7060 SOUTH YALE AVENUE, TULSA, OKLAHOMA 74136
(918) 494-0964
(Address, including zip code, and telephone number, including
area code, of registrant's principal executive offices)
KINARK CORPORATION 1996 STOCK OPTION PLAN
(Full title of the Plan)
PAUL R. CHASTAIN
CHIEF FINANCIAL OFFICER
7060 SOUTH YALE AVENUE
TULSA, OKLAHOMA 74136
(918) 494-0964
(Name, address, including zip code, and telephone number, including area
code, of agent for service)
COPY TO:
PAUL A. QUIROS, ESQ.
Nelson Mullins Riley & Scarborough, L.L.P.
400 Colony Square, Suite 2200
1201 Peachtree Street, N.E.
Atlanta, Georgia 30361
(404) 817-6000
(404) 817-6050 (fax)
<TABLE>
CALCULATION OF REGISTRATION FEE
<CAPTION>
Amount to Proposed MaximumProposed Maximum
Title of Securitiesbe Offering Price PerAggregate OfferingAmount of
to be RegisteredRegistered Share(1) Price(1) Registration Fee
<S> <C> <C> <C> <C>
Common Stock, 800,000 $2.94 2,352,000 $713
par value
</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(c) and (h) and based upon the average of the high and
low prices of the Registrant's Common Stock on October 31, 1996, as
reported by the American Stock Exchange.<PAGE>
PART I
INFORMATION REQUIRED IN SECTION 10(A) PROSPECTUS
ITEM 1. PLAN INFORMATION*
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION*
*Information required by Part I to be contained in the Section 10(a) prospectus
is omitted from this Registration Statement on Form S-8 (the "Registration
Statement") in accordance with Rule 428 under the Securities Act of 1933 and
the Note to Part I of Form S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed by Kinark Corporation, a Delaware
corporation (the "Company"), with the Securities and Exchange Commission (the
"Commission") under the Securities Exchange Act of 1934, as amended (File No.
001-03920) are incorporated by reference in this Registration Statement:
(a) The Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1995, filed with the Commission on April 1, 1996, as amended by
Form 10-K/A filed with the Commission on April 4, 1996, and as further amended
by Form 10-K/A filed with the Commission on July 30, 1996;
(b) The Company's Quarterly Report on Form 10-Q for the quarter ended
March 31, 1996, filed with the Commission on May 15, 1996, as amended by Form
10-Q/A filed with the Commission on July 30, 1996; the Company's Quarterly
Report on Form 10-Q for the quarter ended June 30, 1996, filed with the
Commission on August 14, 1996; the Company's Current Report on Form 8-K dated
February 5, 1996, filed with the Commission on February 20, 1996, as amended by
Form 8-K/A filed with the Commission on April 19, 1996; the Company's Current
Report on Form 8-K dated February 27, 1996, filed with the Commission on March
13, 1996, as amended by Form 8-K/A filed with the Commission on March 21, 1996,
and as further amended by Form 8-K/A filed with the Commission on April 5,
1996; the Company's Current Report on Form 8-K dated April 10, 1996, filed with
the Commission on May 8, 1996; the Company's Current Report on Form 8-K dated
May 14, 1996, filed with the Commission on May 22, 1996; the Company's Current
Report on Form 8-K dated October 28, 1996, filed with the Commission on October
31, 1996; and
(c) The description of the Company's Common Stock, par value $.10 per
share, set forth under the caption "Description of Capital Stock" in the
Company's Registration Statement on Form S-3 (File No. 333-4937) filed with the
Commission on October 4, 1996.
All documents subsequently filed by the Company pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), prior to the filing of a post-effective amendment which
indicates that all securities offered have been sold or which deregisters all
securities then remaining unsold, shall be deemed to be incorporated by
reference in this Registration Statement and to be part hereof from the date of
filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 102(b)(7) of the Delaware General Corporation Law authorizes the
inclusion of a provision in the certificate of incorporation of a Delaware
corporation to eliminate or limit the personal liability of a director to the
corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director, provided that such provision may not eliminate or limit the
liability of a director: (i) for any breach of the director's duty of loyalty
to the corporation or its stockholders; (ii) for acts or omissions not in good
faith or which involve intentional misconduct or a knowing violation of law;
(iii) for willful or negligent conduct in paying dividends or repurchasing
stock out of other than lawfully available funds; or (iv) for any transaction
from which the director receives an improper personal benefit. This provision
pertains only to breaches of duty by directors in their capacity as directors
(and not in any other corporate capacity, such as officers). The Company's
Restated Certificate of Incorporation, as amended (the "Certificate"),
exonerates the Company's directors from monetary liability to the fullest
extent permitted by this statutory provision.
Section 145 of the Delaware General Corporation Law authorizes a Delaware
corporation to indemnify its officers, directors, employees or agents for
attorneys' fees and other expenses as well as judgments or amounts paid in
settlement in civil cases. The person seeking indemnification must have acted
in good faith and in a manner he or she reasonably believed to be in or not
opposed to the best interests of the corporation in respect to the claim made
against him or her. In criminal cases, the person seeking indemnification may
be indemnified for fines and costs provided that, in addition to the foregoing
standard of conduct, he or she did not have reasonable cause to believe his or
her conduct was unlawful. Section 145 also permits a Delaware corporation to
indemnify its directors, officers, agents and employees for expenses and
attorneys' fees (not judgments) in actions brought by or in the right of the
corporation, except that it does not permit such indemnification for any claim
as to which such person is adjudged to be liable to the corporation, unless the
court determines otherwise. Section 145 requires a Delaware corporation to
indemnify any director, officer, employee or agent of the corporation to the
extent he or she has been successful on the merits or otherwise in defense of
any action, lawsuit or proceeding, or in defense of any claim, issue or matter
therein, for expenses, including attorneys' fees, actually and reasonably
incurred in connection with that defense.
In addition to such rights as may be provided by law, the Certificate and
the Company's Amended and Restated Bylaws (the "Bylaws") provide broad
indemnification rights to directors, officers, employees and agents of the
Company and its subsidiaries with respect to various civil and criminal
liabilities and losses which may be incurred by such director, officer, agent
or employee pursuant to any pending or threatened litigation or other
proceedings, to the fullest extent permitted under the Delaware General
Corporation Law. The Company is also obligated under the Certificate and the
Bylaws to advance payment of expenses incurred by directors, officers,
employees and agents of the Company or its subsidiaries which are incurred by
any such person in defending a proceeding brought by reason of the fact that
her or she is or was a director, officer, employee or agent of the Company or
its subsidiaries, provided that he or she provides an undertaking to the
Company to repay any such advances if it is ultimately determined that he or
she is not entitled to indemnification. Any amendment or other modification to
the Certificate or Bylaws which limits or otherwise adversely affects the
rights to indemnification currently provided shall apply only to proceedings
based upon actions and events occurring after such amendment and delivery of
notice thereof to the indemnified parties.
The Company has entered into separate indemnification agreements with each
of its directors and certain of its officers and employees, whereby the Company
has agreed, among other things, to provide for indemnification and advancement
of expenses in a manner and subject to terms and conditions similar to those
set forth in the Bylaws. These agreements may not be abrogated by action of
the stockholders.
The Company has a standard policy of directors' and officers' liability
insurance covering directors, officers, employees and agents of the Company and
its subsidiaries with respect to liabilities incurred as a result of their
service in such capacities.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
Exhibit
Number
4.1 Provisions in the Company's Restated Certificate of Incorporation, as
amended, and Amended and Restated Bylaws defining the rights of
holders of the Company's Common Stock (incorporated by reference to
Exhibit 4.1 to the Company's Registration Statement on form S-3 filed
with the Commission on October 4, 1996 (File No. 333-4937)).
4.2 Kinark Corporation 1996 Stock Option Plan.
4.3 Form of Stock Option Agreement pursuant to Kinark Corporation 1996
Stock Option Plan.
4.4 Form of Stock Option Agreement for Non-Employee Directors pursuant to
the Kinark Corporation Stock Option Plan.
5.1 Opinion of Nelson Mullins Riley & Scarborough, L.L.P., counsel to the
Company, as to legality of securities being registered.
15.1 Letter Regarding Unaudited Interim Financial Information.
23.1 Consent of Deloitte & Touche LLP, independent auditors of the
Company.
23.2 Consent of Nelson Mullins Riley & Scarborough, L.L.P. (included as
part of Exhibit 5.1).
24.1 Power of Attorney (contained on signature page of this filing).
ITEM 9. UNDERTAKINGS.
(a) The Company hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement to include
any material information with respect to the plan of distribution not
previously disclosed in the Registration Statement or any material change
to such information in the Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a
new registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at
the termination of the offering.
(b) The Company hereby undertakes that, for purposes of determining any
liability under the Securities Act of 1933, each filing of the Company's annual
report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and,
where applicable, each filing of an employee benefit plan's annual report
pursuant to Section 15(d) of the Exchange Act) that is incorporated by
reference in the Registration Statement shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the Company pursuant to the foregoing provisions, or otherwise, the
Company has been advised that in the opinion of the Commission such
indemnification is against public policy as expressed in the Securities Act of
1933 and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the Company
of expenses incurred or paid by a director, officer or controlling person of
the Company in the successful defense of any action, suit or proceeding) is
asserted by such director, officer or controlling person in connection with the
securities being registered, the Company will, unless in the opinion of its
counsel the matter has been settled by controlling precedent, submit to a court
of appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Securities Act of 1933 and will be
governed by the final adjudication of such issue.<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Company
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Dallas, State of Texas, on October 10, 1996.
Kinark Corporation
By:/s/ Ronald J. Evans
Ronald J. Evans
President
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Ronald J. Evans and Paul R. Chastain,
and each of them, as true and lawful attorneys-in-fact and agents, with full
power of substitution and resubstitution for him and in his name, place and
stead, in any and all capacities, to sign any and all amendments (including
post-effective amendments) to this Registration Statement, and to file the
same, with all exhibits thereto, and other documents in connection therewith,
with the Securities and Exchange Commission, granting unto said attorneys-in-
fact and agents, and each of them, full power and authority to do and perform
each and every act and thing requisite and necessary to be done in and about
the premises, as fully and to all intents and purposes as he might or could do
in person, hereby ratifying and confirming all which said attorneys-in-fact and
agents or any of them, or their or his substitute or substitutes, may lawfully
do, or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
Signature Title Date
/s/ Michael T. Crimmins Chief Executive Officer October 10, 1996
Michael T. Crimmins (principal executive officer)
(Chairman of the Board and
Director
/s/ Ronald J. Evans President and Director October 10, 1996
Ronald J. Evans
/s/ Paul R. Chastain Vice President and Chief October 10, 1996
Paul R. Chastain Financial Officer
(principal financial and
accounting officer) and
Director
/s/ Richard C. Butler Director October 10, 1996
Richard C. Butler
/s/ Mark E. Walker Director October 10, 1996
Mark E. Walker
/s/ Joseph J. Morrow Director October 10, 1996
Joseph J. Morrow
/s/ John H. Sununu Director October 10, 1996<PAGE>
EXHIBIT INDEX
Exhibit Sequential
Number Exhibit Page No.
4.1 Provisions in the Company's Restated Certificate of Incorporation, as
amended, and Amended and Restated Bylaws defining the rights of
holders of the Company's Common Stock (incorporated by reference to
Exhibit 4.1 to the Company's Registration Statement on Form S-3 filed
with the Commission on October 4, 1996 (File No. 333-4937)).
4.2 Kinark Corporation 1996 Stock Option Plan.
4.3 Form of Stock Option Agreement pursuant to Kinark
Corporation 1996 Stock Option Plan.
4.4 Form of Stock Option Agreement for Non-Employee Directors
pursuant to the Kinark Corporation Stock Option Plan.
5.1 Opinion of Nelson Mullins Riley & Scarborough, L.L.P.,
counsel to the Company, as to legality of securities being
registered.
15.1 Letter Regarding Unaudited Interim Financial Information.
23.1 Consent of Deloitte & Touche LLP, independent auditors of
the Company.
23.2 Consent of Nelson Mullins Riley & Scarborough, L.L.P.
(included as part of Exhibit 5.1).
24.1 Power of Attorney (contained on signature page of this
filing).
EXHIBIT 4.2<PAGE>
KINARK CORPORATION
1996 STOCK OPTION PLAN<PAGE>
KINARK CORPORATION
1996 STOCK OPTION PLAN
TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS 1
ARTICLE II THE PLAN 4
2.1 Name 4
2.2 Purpose 4
2.3 Effective Date 5
ARTICLE III PARTICIPANTS 5
ARTICLE IV ADMINISTRATION 5
4.1 Duties and Powers of the Committee 5
4.2 Interpretation; Rules 5
4.3 No Liability 6
4.4 Majority Rule 6
4.5 Company Assistance 6
ARTICLE V SHARES OF STOCK SUBJECT TO PLAN 6
5.1 Limitations 6
5.2 Antidilution 6
ARTICLE VI OPTIONS 8
6.1 Types of Options Granted 8
6.2 Discretionary Options 8
6.3 Optionee Limitations 8
6.4 $100,000 Limitation 9
6.5 Exercise Price of Discretionary Options 9
6.6 Exercise Period of Discretionary Options 9
6.7 Non-Employee Director Options 9
6.8 Option Exercise 10
6.9 Nontransferability 11
6.10 Termination of Employment or Service 11
6.11 Certain Successor Options 11
6.12 Effect of Change in Control 12
ARTICLE VII STOCK APPRECIATION RIGHTS 12
7.1 SAR Awards 12
7.2 Determination of Price 12
7.3 Exercise of a SAR 12
7.4 Payment of a SAR Spread 12
7.5 Effect of SARs on Stock Subject to Plan 12
7.6 Termination of SARs 13
7.7 Nontransferability 13
7.8 No Stockholder Rights 13
ARTICLE VIII STOCK CERTIFICATES 14
ARTICLE IX TERMINATION AND AMENDMENT 14
9.1 Termination and Amendment 14
9.2 Rule 16b-3 Requirement 14
9.3 Effect on Grantee's Rights 15
ARTICLE X RELATIONSHIP TO OTHER COMPENSATION PLANS 15
ARTICLE XI MISCELLANEOUS 15
11.1 Replacement or Amended Grants 15
11.2 Employment Rights 15
11.3 Section 16 of Exchange Act 15
11.4 Plan Binding on Successors 15
11.5 Singular, Plural, Gender 15
11.6 Headings Not Part of Plan 16
11.7 Interpretation 16
11.8 Governing Law 16
<PAGE>
KINARK CORPORATION
1996 STOCK OPTION PLAN
ARTICLE I
DEFINITIONS
As used herein, the following terms have the following meanings unless the
context clearly indicates to the contrary:
"Advisor" or "Consultant" shall mean any person performing services for
the Company or any Subsidiary of the Company, with or without compensation, to
whom the Company chooses to grant Options in accordance with the Plan, provided
that bona fide services must be rendered by such person and such services shall
not be rendered in connection with the offer or sale of securities in a
capital-raising transaction.
"Award" shall mean a grant of a SAR under this Plan.
"Board" shall mean the Board of Directors of the Company.
"Change in Control" shall mean the occurrence of either of the following
events:
(a) A change in the composition of the Board as a result of which fewer
than one-half of the incumbent Directors are Directors who either:
(i) were Directors of the Company twenty-four (24) months prior to
such change, or
(ii) were elected, or nominated for election, to the Board with the
affirmative votes of at least a majority of the Directors who
had been Directors of the Company twenty-four (24) months prior
to such change and who were still in office at the time of the
election or nomination; or
(b) Any "person" (as such term is used in Sections 13(d) and 14(d) of the
Exchange Act), by the acquisition or aggregation of securities, is or
becomes the beneficial owner, directly or indirectly, of securities
of the Company representing fifty percent (50%) or more of the
combined voting power of the Company's then outstanding securities
ordinarily (and apart from rights accruing under special
circumstances) having the right to vote at elections of Directors
(the "Base Capital Stock"); except that any change in the relative
beneficial ownership of the Company's securities by any person
resulting solely from a reduction in the aggregate number of
outstanding shares of Base Capital Stock shall be disregarded until
such person increases in any manner, directly or indirectly, such
person's beneficial ownership of any securities of the Company.
"Code" shall mean the Internal Revenue Code of 1986, as amended, including
effective date and transition rules (whether or not codified). Any reference
herein to a specific section of the Code shall be deemed to include a reference
to any applicable corresponding provision of future law.
"Committee" shall mean a committee of at least three (3) Directors
appointed from time to time by the Board, having the duties and authority set
forth herein in addition to any other authority granted by the Board; provided,
however, that with respect to any Discretionary Options or Awards granted to an
individual who is also a Section 16 Insider, the Committee shall consist of at
least two (2) Directors (who need not be members of the Committee with respect
to Options or Awards granted to any other individuals) who are Disinterested
Persons, and all authority and discretion shall be exercised by such
Disinterested Persons, and references herein to the "Committee" shall mean such
Disinterested Persons insofar as any actions or determinations of the Committee
shall relate to or affect Discretionary Options or Awards made to or held by
any Section 16 Insider. At any time that the Board shall not have appointed a
committee as described above, any reference herein to the Committee shall mean
a reference to the Board.
"Company" shall mean Kinark Corporation, a Delaware corporation.
"Director" shall mean a member of the Board and any person who is an
advisory or honorary director of the Company if such person is considered a
director for the purposes of Section 16 of the Exchange Act.
"Disabled Optionee" shall mean a Grantee who suffers a Disability.
"Disability" shall mean a physical or mental infirmity which impairs a
Grantee's ability to substantially perform his duties with the Company or a
Subsidiary for a period of 180 consecutive days, as determined by an
independent physician selected by agreement between the Company and the Grantee
or, failing such agreement, selected by two physicians (one of which shall be
selected by the Company and the other by the Grantee); provided, however,
"Disability" shall have the meaning set forth in Section 22(e)(3) of the Code
and the regulations promulgated thereunder in respect of an Optionee granted
Incentive Stock Options.
"Discretionary Option" shall mean an Option granted under this Plan, at
the discretion of the Committee, in accordance with, and subject to, Section
6.2 hereof, and which may be an Incentive Stock Option or a non-Incentive Stock
Option.
"Disinterested Person" shall have the meaning given such term under Rule
16b-3 of the Exchange Act, as the same may be in effect from time to time, or
in any successor rule thereto.
"Employee" shall mean an employee of the Company, or of any Subsidiary, as
defined under Section 3401(c) of the Code and the regulations thereunder.
Unless the context otherwise indicates, the term "Employee" shall include any
Officers or Directors who are not Non-Employee Directors.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as amended
and as the same may be amended from time to time. Any reference herein to a
specific section of the Exchange Act shall be deemed to include a reference to
any corresponding provision of future law.
"Exercise Price" shall mean the price at which an Optionee may purchase a
share of Stock under a Stock Option Agreement.
"Fair Market Value" on any date shall mean the closing sales price of the
Stock on such date on the national securities exchange having the greatest
volume of trading in the Stock during the thirty (30) day period preceding such
date or, if such exchange was not open for trading on such date, the next
preceding date on which it was open.
"For Cause" termination shall mean the termination of the Grantee's
employment as a result of: (i) any act that constitutes, on the part of the
Grantee, fraud, dishonesty, gross malfeasance of duty, or conduct grossly
inappropriate to the Grantee's position of employment; or (ii) the conviction
(from which no appeal may be or is timely taken) of the Grantee of a felony.
"Grantee" shall mean a person who is an Optionee (or his permitted assign)
or a person who has received an Award of a SAR.
"Incentive Stock Option" shall mean an Option that complies with and is
subject to the terms, limitations and conditions of Section 422 of the Code and
the regulations promulgated thereunder.
"Non-Employee Director" shall mean a Director of the Company who has not
been an Officer or an Employee of the Company or any Subsidiary at any time
during the twelve (12) months preceding the grant of a Non-Employee Director
Option.
"Non-Employee Director Option" shall mean an Option granted to a Non-
Employee Director in accordance with, and subject to, Section 6.7 hereof.
"Officer" shall mean a person who constitutes an officer of the Company
for the purposes of Section 16 of the Exchange Act, as the same may be in
effect from time to time, or in any successor rule thereto.
"Option" shall mean an option, including a Discretionary Option and a Non-
Employee Director Option, to purchase Stock granted pursuant to the provisions
of Article VI hereof.
"Optionee" shall mean a person to whom an Option has been granted
hereunder or his permitted assign.
"Plan" shall mean the Kinark Corporation 1996 Stock Option Plan, the terms
of which are set forth herein, as the same may be amended from time to time.
"Qualified Domestic Relations Order" shall have the meaning set forth in
Section 414(p)(1)(A) of the Code and the regulations promulgated thereunder.
"SAR" means a stock appreciation right, which is the right to receive an
amount equal to the SAR Spread.
"SAR Agreement" shall mean a written agreement setting forth the terms of
an Award of a SAR, as provided in Section 7.1 hereof.
"SAR Price" shall mean the base value established by the Committee for a
SAR on the date the SAR is granted and which is used in determining the SAR
Spread.
"SAR Spread" shall mean, with respect to any SAR, an amount equal to (a)
the Fair Market Value of a share of Stock on the date such SAR is exercised,
less (b) the SAR Price of such SAR.
"Section 16 Insider" shall mean any person who is subject to the
provisions of Section 16 of the Exchange Act, as provided in Rule 16a-2
promulgated pursuant to the Exchange Act, as the same may be in effect from
time to time, or in any successor rule thereto.
"Stock" shall mean the Common Stock, par value $.10 per share, of the
Company, subject to the provisions of Article V hereof.
"Stock Option Agreement" shall mean a written agreement between the
Company and an Optionee under which the Optionee may purchase Stock hereunder,
as provided in Article VI hereof.
"Subsidiary" shall mean any corporation in which the Company directly or
indirectly owns stock possessing fifty percent (50%) or more of the total
combined voting power of all classes of stock of such corporation.
"Vested" shall refer to an Option that may be exercised by an Optionee
under the terms of this Plan on or after a certain date specified in the
applicable Stock Option Agreement.
ARTICLE II
THE PLAN
2.1 Name. This Plan shall be known as the "Kinark Corporation 1996 Stock
Option Plan."
2.2 Purpose. The purpose of the Plan is to advance the interests of the
Company, its Subsidiaries and its stockholders by affording Directors and
Employees of the Company and its Subsidiaries, as well as Consultants and
Advisors to the Company or any Subsidiary, an opportunity to acquire or
increase their proprietary interests in the Company. The objective of the
Options and Awards is to promote the growth and profitability of the Company
and its Subsidiaries by providing the Grantees with an additional incentive to
achieve the Company's objectives through participation in its success and
growth and by encouraging their continued association with or service to the
Company and its Subsidiaries.
2.3 Effective Date. The effective date of this Plan is June 5, 1996,
subject to the approval of this Plan by the stockholders of the Company at the
annual meeting of the stockholders on June 5, 1996, or any adjournment thereof.
ARTICLE III
PARTICIPANTS
The class of persons eligible to participate in this Plan shall consist of
all persons whose participation in the Plan the Committee determines to be in
the best interests of the Company which shall include, but not be limited to,
all Directors and Employees of the Company or any Subsidiary, as well as
Consultants and Advisors to the Company or any Subsidiary; provided, however,
that (a) only Employees of the Company or any Subsidiary shall be eligible to
receive grants of Incentive Stock Options and (b) Non-Employee Directors are
only eligible to receive Non-Employee Director Options.
ARTICLE IV
ADMINISTRATION
4.1 Duties and Powers of the Committee. This Plan shall be administered
by the Committee. The Committee shall select one of its members as its
Chairman and shall hold its meetings at such times and places as it may
determine. The Committee shall keep minutes of its meetings and shall make
such rules and regulations for the conduct of its business as it may deem
necessary. The Committee shall have the power to act by unanimous written
consent in lieu of a meeting, and to meet telephonically. In administering
this Plan, the Committee's actions and determinations shall be binding on all
interested parties. The Committee shall have the power to grant Discretionary
Options and Awards in accordance with the provisions of this Plan and may grant
Discretionary Options and Awards singularly, in combination, or in tandem.
Subject to the provisions of this Plan, the Committee shall have the discretion
and authority to determine those persons to whom Discretionary Options or
Awards will be granted, the number of shares of Stock subject to each
Discretionary Option or Award, such other matters as are specified herein, and
any other terms and conditions of a Stock Option Agreement and SAR Agreement.
To the extent not inconsistent with the provisions of this Plan, the Committee
may give a Grantee an election to surrender a Discretionary Option or Award in
exchange for the grant of a new Discretionary Option or Award, and shall have
the authority to amend or modify an outstanding Stock Option Agreement or SAR
Agreement, or to waive any provision thereof, provided that the Grantee
consents to such action.
4.2 Interpretation; Rules. Subject to the express provisions of this
Plan, the Committee shall have complete authority to interpret this Plan, to
prescribe, amend and rescind rules and regulations relating to it, to determine
the details and provisions of each Stock Option Agreement and SAR Agreement,
and to make all other determinations necessary or advisable for the
administration of this Plan, including, without limitation, the amending or
altering of this Plan and any Options or Awards granted hereunder as may be
required to comply with or to conform to any federal, state or local laws or
regulations.
4.3 No Liability. Neither any Director nor any member of the Committee
shall be liable to any person or entity for any act or determination made in
good faith with respect to this Plan or any Option or Award granted hereunder.
4.4 Majority Rule. A majority of the members of the Committee shall
constitute a quorum, and any action taken by a majority at a meeting at which a
quorum is present, or any action taken without a meeting evidenced by a writing
executed by all the members of the Committee, shall constitute the action of
the Committee.
4.5 Company Assistance. The Company shall supply full and timely
information to the Committee on all matters relating to eligible persons, their
employment, death, retirement, disability or other termination of employment,
and such other pertinent facts as the Committee may require. The Company shall
furnish the Committee with such clerical and other assistance as is necessary
in the performance of its duties.
ARTICLE V
SHARES OF STOCK SUBJECT TO PLAN
5.1 Limitations. Subject to the antidilution provisions of Section 5.2,
the maximum number of shares of Stock that may be issued hereunder pursuant to
Options or as payment of a SAR Spread shall be eight hundred thousand
(800,000). Any or all shares of Stock subject to the Plan may be issued in
respect of Incentive Stock Options and non-Incentive Stock Options and as
payment of a SAR Spread, or in any combination thereof. Except as otherwise
provided in Section 5.2, the amount of Stock subject to the Plan may not be
increased without stockholder approval, as provided in Article IX hereof.
Shares of Stock subject to an Option or issued as payment of a SAR Spread may
be either authorized and unissued shares or treasury shares issued and later
acquired by the Company. The shares of Stock subject to any unexercised
portion of an Option that has terminated for any reason (except as set forth in
the following paragraph) may again be subject to an Option or issued as payment
of a SAR Spread under this Plan, and shall not be considered as having been
optioned or issued in computing the number of shares of Stock remaining
available for issuance under this Plan.
5.2 Antidilution.
(a) If (i) the outstanding shares of Stock are increased, decreased,
or changed into or exchanged for a different number or kind of shares or other
securities of the Company, by reason of merger, consolidation, reorganization,
recapitalization, reclassification, combination or exchange of shares, or stock
split or stock dividend, (ii) any spin-off, split-off or other distribution of
assets materially affects the price of the Stock, or (iii) there is any
assumption and conversion to this Plan by the Company of an acquired company's
outstanding option grants, then:
(A) the maximum aggregate number and the class or series of
shares of Stock available for issuance hereunder shall be adjusted
appropriately by the Committee; and
(B) the rights of Optionees (concerning the number of shares
subject to Options and the Exercise Price) under outstanding Options
and the rights of the holders of Awards (concerning the terms and
conditions of the lapse of any then-remaining restrictions), shall be
adjusted appropriately by the Committee.
(b) If the Company is a party to any reorganization in which it does
not survive, involving merger, consolidation, or acquisition of the stock or
substantially all the assets of the Company, the Committee, in its discretion,
may:
(i) notwithstanding other provisions hereof, declare that all or a
portion of the Options granted under this Plan shall become exercisable
immediately notwithstanding the provisions of the respective Stock Option
Agreements regarding exercisability, that all such Options shall terminate
thirty (30) days after the Committee gives written notice of the immediate
right to exercise all such Options and of the decision to terminate all
Options not exercised within such 30-day period, and that all then-
remaining restrictions pertaining to all or a portion of the Awards under
this Plan shall immediately lapse; and/or
(ii) notify all Grantees that all or a portion of the Options and
Awards granted under this Plan shall be assumed by the successor
corporation or substituted on an equitable basis with options or stock
appreciation rights issued by such successor corporation.
(c) If the Company is to be liquidated or dissolved in connection
with a reorganization described in Section 5.2(b), the provisions of that
Section shall apply. In all other instances, the adoption of a plan of
dissolution or liquidation of the Company shall, notwithstanding other
provisions hereof, cause all then-remaining restrictions pertaining to Options
and Awards under the Plan to lapse, and shall cause every Option and Award
outstanding under the Plan to terminate to the extent not exercised prior to
the adoption of the plan of dissolution or liquidation by the stockholders;
provided that, notwithstanding any other provisions hereof, the Committee may
declare all Options and Awards granted under the Plan to be exercisable at any
time on or before the fifth (5th) business day following such adoption,
notwithstanding the provisions of the respective Stock Option Agreements or SAR
Agreements regarding exercisability.
(d) The adjustments described in paragraphs (a) through (c) of this
Section 5.2, and the manner of their application, shall be determined solely by
the Committee, and any such adjustment may provide for the elimination of
fractional share interests; provided, however, that any adjustment made by the
Committee shall be made in a manner that will not cause an Incentive Stock
Option to be other than an Incentive Stock Option under applicable statutory
and regulatory provisions. The adjustments required under this Article V shall
apply to any successors of the Company and shall be made regardless of the
number or type of successive events requiring such adjustments.
ARTICLE VI
OPTIONS
6.1 Types of Options Granted. The Committee may, under this Plan, grant
either Incentive Stock Options or Options which do not qualify as Incentive
Stock Options; provided, however, that only Employees of the Company or any
Subsidiary shall be eligible to receive grants of Incentive Stock Options.
Non-Employee Director Options shall be non-Incentive Stock Options. Within the
limitations provided in this Plan, both Incentive Stock Options and non-
Incentive Stock Options may be granted to the same person at the same time, or
at different times, under different terms and conditions, as long as the terms
and conditions of each Option are consistent with the provisions of this Plan.
Without limitation of the foregoing, Discretionary Options may be granted
subject to conditions based on the financial performance of the Company or any
other factor the Committee deems relevant. Neither the Company, nor any
Subsidiary or any Director or Officer of the Company or any Subsidiary warrants
or represents that (i) any Option granted under this Plan shall be considered
an Incentive Stock Option for applicable tax purposes, or (ii) favorable or
desirable tax treatment or characterization will be applicable in respect of
any Options.
6.2 Discretionary Options. The Committee may grant Discretionary Options
under this Plan upon such restrictions, terms and conditions as the Committee
may prescribe. Each Discretionary Option granted hereunder shall be evidenced
by minutes of a meeting or the written consent of the Committee and by a
written Stock Option Agreement executed by the Company and the Optionee. The
terms of the Discretionary Option, including the Discretionary Option's
duration, vesting schedule, exercise price, and whether it is intended to be an
Incentive Stock Option, shall be determined by the Committee, and stated in the
Stock Option Agreement. No Incentive Stock Option may be granted more than ten
(10) years after the effective date of this Plan. Separate Stock Option
Agreements may be used for Discretionary Options intended to be Incentive Stock
Options and those not so intended, but any failure to use such separate
agreements shall not invalidate, or otherwise adversely affect the Optionee's
interest in, the Discretionary Options evidenced thereby.
6.3 Optionee Limitations. The Committee shall not grant an Incentive
Stock Option to any person who, at the time the Incentive Stock Option is
granted:
(a) is not an Employee of the Company or any of its Subsidiaries; or
(b) owns or is considered to own stock possessing at least ten
percent (10%) of the total combined voting power of all classes of stock of the
Company or any of its Subsidiaries; provided, however, that this limitation
shall not apply if at the time an Incentive Stock Option is granted the
Exercise Price is at least one hundred ten percent (110%) of the Fair Market
Value of the Stock subject to such Option and such Option by its terms is not
exercisable after five (5) years from the date on which the Option is granted.
For the purpose of this subsection (b), a person shall be considered to own:
(i) the stock owned, directly or indirectly, by or for his or her brothers and
sisters (whether by whole or half blood), spouse, ancestors and lineal
descendants; (ii) the stock owned, directly or indirectly, by or for a
corporation, partnership, estate or trust in proportion to such person's stock
interest, partnership interest or beneficial interest therein; and (iii) the
stock which such person may purchase under any outstanding options of the
Company or any Subsidiary.
6.4 $100,000 Limitation. Except as provided below, the Committee shall
not grant an Incentive Stock Option to, or modify the exercise provisions of
any outstanding Incentive Stock Option held by, any person who, at the time the
Incentive Stock Option is granted (or modified), would thereby receive or hold
any Incentive Stock Options of the Company and any Subsidiary, such that the
aggregate Fair Market Value (determined as of the respective dates of grant or
modification of each Option) of the Stock with respect to which such Incentive
Stock Options are exercisable for the first time during any calendar year is in
excess of $100,000 (or such other limit as may be prescribed by the Code from
time to time); provided, that the foregoing restriction on modification of
outstanding Incentive Stock Options shall not preclude the Committee from
modifying an outstanding Incentive Stock Option if, as a result of such
modification and with the consent of the Optionee, such Option no longer
constitutes an Incentive Stock Option; and provided further that, if the
$100,000 limitation (or such other limitation prescribed by the Code) described
in this Section 6.4 is exceeded, the Incentive Stock Option, the granting or
modification of which resulted in the exceeding of such limit, shall be treated
as an Incentive Stock Option up to the limitation and the excess shall be
treated as an Option not qualifying as an Incentive Stock Option.
6.5 Exercise Price of Discretionary Options. The Exercise Price of the
Stock subject to each Discretionary Option shall be determined by the
Committee. Subject to the provisions of Section 6.3(b) hereof, the Exercise
Price of an Incentive Stock Option shall not be less than the Fair Market Value
of the Stock as of the date the Discretionary Option is granted (or in the case
of an Incentive Stock Option that is subsequently modified, on the date of such
modification).
6.6 Exercise Period of Discretionary Options. The period for the
exercise of each Discretionary Option granted hereunder shall be determined by
the Committee. The Committee shall have the authority to prescribe in any
Stock Option Agreement that the Discretionary Option may be exercised in
accordance with a vesting schedule set forth in such agreement. The Stock
Option Agreement with respect to each Discretionary Option intended to be an
Incentive Stock Option shall provide that such Discretionary Option shall not
be exercisable after the expiration of ten (10) years from the date of grant
(or modification) of the Discretionary Option. In addition, no Discretionary
Option granted to a Section 16 Insider shall be exercisable prior to the
expiration of six (6) months from the date such Discretionary Option is
granted, other than in the case of the death or disability of the Optionee.
6.7 Non-Employee Director Options.
(a) Commencing on July 1, 1996, and continuing on the first day of
July 1 thereafter for a period of ten years, through and including July 1,
2005, each Non-Employee Director who is a member of the Board on each of such
dates shall automatically receive Non-Employee Director Stock Options to
purchase five thousand (5,000) shares of Stock. Non-Employee Director Options
shall be evidenced by a written Stock Option Agreement. Non-Employee Director
Options shall be non-Incentive Stock Options.
(b) The Exercise Price of Non-Employee Director Options shall be
100% of the Fair Market Value of the Company's Stock as of July 1 of the year
in which the Non-Employee Director Option is granted.
(c) Each Non-Employee Director Option shall vest and become
exercisable upon the expiration of six (6) months from the date such Non-
Employee Director Option is granted.
(d) Each Non-Employee Director Option shall terminate and cease to
be exercisable after the expiration of ten (10) years from the date such Non-
Employee Director Option is granted.
(e) In the event a Non-Employee Director Optionee ceases to be a
Director by reason of his or her death or Disability, the Optionee or the
Optionee's administrators, executors or personal representatives may exercise
the Optionee's Non-Employee Director Options on the earlier of (i) the last day
of the one (1) year period following the Optionee's death or the beginning of
the Optionee's Disability or (ii) the expiration of the Optionee's Non-Employee
Director Options.
(f) In the event a Non-Employee Director Optionee ceases to be a
Director for any reason other than his or her death or Disability, the Optionee
may exercise his or her Non-Employee Director Options on the earlier of (i) the
last day of the two (2) year period following the date the Optionee ceases to
be a Director or (ii) the expiration of the Optionee's Non-Employee Director
Options.
(g) The anti-dilution provisions of Section 5.2 as well as the
provisions of Sections 6.8 and 6.9 shall apply to Non-Employee Director
Options.
6.8 Option Exercise.
(a) Unless otherwise provided in the Stock Option Agreement or
Section 6.6 hereof, an Option may be exercised at any time or from time to time
during the term of the Option as to any or all Options which have become Vested
under the terms and conditions of the Option, but not at any time as to less
than one hundred (100) shares unless the remaining Options that have become
Vested relate to less than one hundred (100) shares.
(b) An Option shall be exercised by (i) delivery to the Company at
its principal office a written notice of exercise with respect to a specified
number of shares of Stock and (ii) payment to the Company at that office of the
full amount of the Exercise Price for such number of shares in accordance with
Section 6.7(c). If requested by an Optionee, an Option may be exercised with
the involvement of a stockbroker in accordance with the federal margin rules
set forth in Regulation T (in which case the certificates representing the
underlying shares will be delivered by the Company directly to the
stockbroker).
(c) The Exercise Price is to be paid in full in cash upon the
exercise of the Option and the Company shall not be required to deliver
certificates for the shares purchased until such payment has been made;
provided, however, that the Committee may provide in a Stock Option Agreement
(or may otherwise determine in its sole discretion at the time of exercise)
that in lieu of cash, all or any portion of the Exercise Price may be paid by
tendering to the Company shares of Stock duly endorsed for transfer and owned
by the Optionee, or by authorization to the Company to withhold shares of Stock
otherwise issuable upon exercise of the Option, in each case to be credited
against the Exercise Price at the Fair Market Value of such shares on the date
of exercise (however, no fractional shares may be so transferred, and the
Company shall not be obligated to make any cash payments in consideration of
any excess of the aggregate Fair Market Value of shares transferred over the
aggregate Exercise Price); provided further, the Committee may provide in a
Stock Option Agreement (or may otherwise determine in its sole discretion at
the time of exercise) that, in lieu of cash or shares, all or a portion of the
Exercise Price may be paid by the Optionee's execution of a recourse promissory
note the principal amount of which shall be equal to the Exercise Price or the
relevant portion thereof, subject to compliance with applicable state and
federal laws, rules and regulations.
(d) In addition to and at the time of payment of the Exercise Price,
the Company may withhold, or require the Optionee to pay to the Company in
cash, the amount of any federal, state and local income, employment or other
withholding taxes which the Committee determines are required to be withheld
under federal, state or local law in connection with the exercise of an Option;
provided, however, the Committee may provide in a Stock Option Agreement (or
may otherwise determine in its sole discretion at the time of exercise) that
all or any portion of such tax obligations may, upon the election of the
Optionee, be paid by tendering to the Company whole shares of Stock duly
endorsed for transfer and owned by the Optionee, or by authorization to the
Company to withhold shares of Stock otherwise issuable upon exercise of the
Option, in either case in that number of shares having a Fair Market Value on
the date of exercise equal to the amount of such taxes thereby being paid, and
subject to such restrictions as to the approval and timing of any such election
as the Committee may from time to time determine to be necessary or appropriate
to satisfy the conditions of the exemption set forth in Rule 16b-3 under the
Exchange Act, if such rule is applicable.
(e) The holder of an Option shall not have any of the rights of a
stockholder with respect to the shares of Stock subject to the Option until
such shares have been issued and transferred to the Optionee upon the exercise
of the Option.
6.9 Nontransferability. No Option shall be transferable by an Optionee
other than by will or the laws of descent and distribution; provided, however,
non-Incentive Stock Options may also be transferred pursuant to a Qualified
Domestic Relations Order. During the lifetime of an Optionee, Options shall be
exercisable only by such Optionee (or by such Optionee's guardian or legal
representative, should one be appointed).
6.10 Termination of Employment or Service. The Committee shall have the
power to specify, with respect to the Discretionary Options granted to a
particular Optionee, the effect upon such Optionee's right to exercise a
Discretionary Option upon termination of such Optionee's employment or service
under various circumstances, which effect may include immediate or deferred
termination of such Optionee's rights under a Discretionary Option, or
acceleration of the date at which a Discretionary Option may be exercised in
full; provided, however, that in no event may an Incentive Stock Option be
exercised after the expiration of ten (10) years from the date of grant
thereof.
6.11 Certain Successor Options. To the extent not inconsistent with the
terms, limitations and conditions of Code Section 422 and any regulations
promulgated thereunder, an Option issued in respect of an option to acquire
stock of any entity acquired, by merger or otherwise, by the Company or any
Subsidiary, may contain terms that differ from those stated in this Article VI,
but solely to the extent necessary to preserve the rights and benefits
contained in such predecessor option, or to satisfy the requirements of Code
Section 424(a).
6.12 Effect of Change in Control. The Committee may determine, at the
time of granting a Discretionary Option or thereafter, that such Discretionary
Option shall become exercisable on an accelerated basis in the event that a
Change in Control occurs with respect to the Company (and the Committee shall
have the discretion to modify the definition of Change in Control in a
particular Stock Option Agreement). If the Committee finds that there is a
reasonable possibility that, within the succeeding six (6) months, a Change in
Control will occur with respect to the Company, then the Committee may
determine that all outstanding Discretionary Options shall be exercisable on an
accelerated basis.
ARTICLE VII
STOCK APPRECIATION RIGHTS
7.1 SAR Awards. The Committee may grant Awards of SARs under this Plan
upon such restrictions, terms and conditions as the Committee may prescribe;
provided, however, that the Committee may not grant Awards of SARs to Non-
Employee Directors. Each Award shall be governed by a SAR Agreement between
the Company and the Grantee which shall contain the restrictions, terms and
conditions prescribed by the Committee, including, without limitation,
restrictions on the time of exercise of the SAR to specified periods as may be
necessary to satisfy the requirements of Rule 16b-3. Awards of SARs may be
granted singularly, or in combination or in tandem with Options granted under
this Plan, and may be granted at the same time as or later than the grant of
the Option to which it relates.
7.2 Determination of Price. The SAR Price shall be established by the
Committee in its sole discretion. The SAR Price shall not be less than one
hundred percent (100%) of the Fair Market Value of the Stock on the date the
SAR is granted for a SAR issued in tandem with an Incentive Stock Option.
7.3 Exercise of a SAR. A SAR shall be exercisable at such time as may be
determined by the Committee, provided that a SAR issued in tandem with an
Option shall be exercisable to the extent that the related Option is
exercisable. Upon exercise of a SAR, the Grantee shall be entitled, subject to
the terms and conditions of this Plan and the SAR Agreement, to receive an
amount equal to the SAR Spread.
7.4 Payment of a SAR Spread. Payment of the SAR Spread for any SAR shall
be made, at the sole discretion of the Committee, in (a) cash, (b) shares of
Stock, or (c) a combination of both. Shares of Stock used for this payment
shall be valued at their Fair Market Value on the date of exercise of the
applicable SAR.
7.5 Effect of SARs on Stock Subject to Plan. Stock issued in payment of
the SAR Spread shall reduce the number of shares of Stock remaining available
for issuance under this Plan. The exercise of a SAR which results in the
termination of an unexercised Option issued in tandem with such SAR shall also
reduce the number of shares of Stock remaining available for issuance under
this Plan by the number of shares of Stock subject to the terminated Option.
7.6 Termination of SARs. A SAR may be terminated as follows:
(a) During the period of a Grantee's continuous employment with the
Company or a Subsidiary, a SAR will be terminated only if it has been fully
exercised or it has expired by its terms.
(b) Upon termination of a Grantee's employment with the Company or a
Subsidiary, the SAR will terminate upon the earliest of (i) the full exercise
of the SAR, (ii) the expiration of the SAR by its terms, and (iii) not more
than three (3) months following the date of employment termination; provided,
however, should termination of employment (A) result from the death or
Disability of the Grantee, the period referenced in clause (iii) hereof shall
be one (1) year, or (B) be For Cause, the SAR will terminate on the date of
employment termination. For purposes of this Plan, a leave of absence approved
by the Company shall not be deemed to be termination of employment unless
otherwise provided in the SAR Agreement or by the Company on the date of the
leave of absence.
(c) Subject to the terms of the SAR Agreement with the Grantee, if a
Grantee should die or become subject to a Disability prior to the termination
of employment with the Company or any Subsidiary and prior to the termination
of a SAR, such SAR may be exercised to the extent that the Grantee shall have
been entitled to exercise it at the time of death or Disability, as the case
may be, by the Grantee, the estate of the Grantee or the person or persons to
whom the SAR shall have been transferred by will or by the laws of descent and
distribution.
(d) Except as otherwise expressly provided in the SAR Agreement with
the Grantee, in no event will the continuation of the term of a SAR beyond the
date of termination of employment allow the Employee, or his beneficiaries or
heirs, to accrue additional rights under this Plan, have additional SARs
available for exercise, or receive a higher benefit than the benefit payable as
if the SAR had been exercised on the date of employment termination.
7.7 Nontransferability. No SAR shall be transferable by a Grantee;
provided, however, that a SAR issued in tandem with an Option shall be
transferable, if at all, to the same extent and upon the same terms and
conditions as the related Option.
7.8 No Stockholder Rights. The Grantee of a SAR shall have no rights as
a stockholder with respect to such SAR. In addition, no adjustment shall be
made for dividends (ordinary or extraordinary, whether in cash, securities or
other property) or distributions or rights, except as provided in Section 5.2
hereof.
ARTICLE VIII
STOCK CERTIFICATES
The Company shall not be required to issue or deliver any certificate for
shares of Stock purchased upon the exercise of any Option granted hereunder or
any portion thereof prior to fulfillment of all of the following conditions:
(a) the admission of such shares to listing on all stock exchanges
on which the Stock is then listed;
(b) the completion of any registration or other qualification of
such shares which the Committee shall deem necessary or advisable under any
federal or state law or under the rulings or regulations of the Securities and
Exchange Commission or any other governmental regulatory body;
(c) the obtaining of any approval or other clearance from any
federal or state governmental agency or body which the Committee shall
determine to be necessary or advisable; and
(d) the lapse of such reasonable period of time following the
exercise of the Option as the Board from time to time may establish for reasons
of administrative convenience.
Stock certificates issued and delivered to Grantees shall bear such
restrictive legends as the Company shall deem necessary or advisable pursuant
to applicable federal and state securities laws.
ARTICLE IX
TERMINATION AND AMENDMENT
9.1 Termination and Amendment. Subject to Section 9.2 hereof, the Board
may at any time terminate this Plan, and may at any time and from time to time
and in any respect amend this Plan; provided, however, that the Board (unless
its actions are approved or ratified by the stockholders of the Company within
twelve (12) months of the date that the Board amends the Plan) may not amend
this Plan to:
(a) increase the total number of shares of Stock issuable under this
Plan, except as contemplated under Article V hereof;
(b) materially change the class of persons that may participate in
this Plan; or
(c) otherwise materially increase the benefits accruing to
participants under this Plan.
9.2 Rule 16b-3 Requirement. As required by Rule 16b-3 of the Exchange
Act, any provision of this Plan relating to Non-Employee Director Options shall
not be amended more than once every six months, except as is necessary to make
the Plan comport with changes in the Code, the Employment Retirement Income
Security Act, or the rules thereunder.
9.3 Effect on Grantee's Rights. No termination, amendment or
modification of this Plan shall adversely affect a Grantee's rights under a
Stock Option Agreement or SAR Agreement without the consent of the Grantee or
his legal representative.
ARTICLE X
RELATIONSHIP TO OTHER COMPENSATION PLANS
The adoption of this Plan shall not affect any other stock option,
incentive or other compensation plans in effect for the Company or any of its
Subsidiaries; nor shall the adoption of the Plan preclude the Company or any of
its Subsidiaries from establishing any other form of incentive or other
compensation plan for Employees or Directors of the Company or any of its
Subsidiaries.
ARTICLE XI
MISCELLANEOUS
11.1 Replacement or Amended Grants. At the sole discretion of the
Committee, and subject to the terms of this Plan, the Committee may modify
outstanding Discretionary Options or Awards or accept the surrender of
outstanding Discretionary Options or Awards and grant new Discretionary Options
or Awards in substitution thereof. However, no modification of a Discretionary
Option or Award shall adversely affect a Grantee's rights under a Stock Option
Agreement or SAR Agreement without the consent of the Grantee or his legal
representative.
11.2 Employment Rights. Nothing in this Plan or in any Stock Option
Agreement or SAR Agreement shall confer on any person any right to continue in
the employ of the Company or any of its Subsidiaries, or shall interfere in any
way with the right of the Company or any of its Subsidiaries to terminate such
person's employment at any time.
11.3 Section 16 of Exchange Act. With respect to persons subject to
Section 16 of the Exchange Act, transactions under this Plan are intended to
comply with all applicable conditions of Rule 16b-3, as the same may be amended
from time to time, or any successor thereto. To the extent any provision of
the Plan or action by the Committee fails to so comply, it shall be deemed null
and void, to the extent permitted by law and deemed advisable by the Committee.
11.4 Plan Binding on Successors. This Plan shall be binding upon the
successors and assigns of the Company.
11.5 Singular, Plural, Gender. Whenever used herein, nouns in the
singular shall include the plural, and the masculine pronoun shall include the
feminine gender and vice versa.
11.6 Headings Not Part of Plan. Headings of Articles and Sections hereof
are inserted for convenience and reference, and they do not constitute part of
this Plan.
11.7 Interpretation. With respect to Section 16 Insiders, transactions
under this Plan are intended to comply with all applicable conditions of Rule
16b-3 or its successors under the Exchange Act, and shall be interpreted
consistent therewith.
11.8 Governing Law. This Plan shall be governed by, and construed in
accordance with, the laws of the State of Delaware, without regard to conflicts
of laws principles.
* * * * *
EXHIBIT 4.3<PAGE>
FORM OF STOCK
OPTION AGREEMENT
KINARK CORPORATION
STOCK OPTION AGREEMENT
THIS STOCK OPTION AGREEMENT (this "Agreement") is entered
into as of the
day of , 199__, by and between Kinark
Corporation, a Delaware
corporation (the "Company"), and _________________ (the
"Optionee").
W I T N E S S E T H:
WHEREAS, on April 1, 1996, the Board of Directors of the
Company adopted a
stock option plan known as the "Kinark Corporation 1996 Stock
Option Plan" (the
"Plan"), and recommended that the Plan be approved by the
Company's
shareholders; and
WHEREAS, on June 5, 1996, the shareholders of the Company
approved the
Plan; and
WHEREAS, the Committee has granted the Optionee a stock
option to purchase
the number of shares of the Company's common stock as set forth
below, and in
consideration of the granting of that stock option the Optionee
intends to
remain in the employ of the Company; and
WHEREAS, the Company and the Optionee desire to enter into
this Stock
Option Agreement in accordance with the Plan; and
NOW, THEREFORE, as an employment incentive and to encourage
stock
ownership, and also in consideration of the mutual covenants
contained herein,
the parties hereto agree as follows.
1. Incorporation of Plan. This option is granted pursuant
to the
provisions of the Plan and the terms and definitions of the Plan
are
incorporated herein by reference and made a part hereof.
Capitalized terms not
defined herein shall have the meanings ascribed to them in the
Plan. A copy of
the Plan has been delivered to, and receipt is hereby
acknowledged by, the
Optionee. Notwithstanding anything in this Agreement to the
contrary, to the
extent the terms of this Agreement conflict with or otherwise
attempt to exceed
the authority set forth under the terms of the Plan, the Plan
shall govern and
control in all respects.
2. Grant of Option. Subject to the terms, restrictions,
limitations and
conditions stated herein and under the Plan, the Company hereby
evidences its
grant to the Optionee, not in lieu of salary or other
compensation, of the
right and option (the "Option") to purchase all or any part of
the number of
shares of the Company's Common Stock, par value $.10 per share
(the "Stock"),
set forth on Schedule A attached hereto and incorporated herein
by reference.
The Option shall be exercisable in the amounts and at the times
specified on
Schedule A. The Option shall expire and shall not be exercisable
on the date
specified on Schedule A or on such earlier date as determined
pursuant to
Section 8 hereof. Schedule A states whether the Option is
intended to be an
Incentive Stock Option. Neither the Company, nor any Subsidiary
or any
Director or Officer of the Company or any Subsidiary warrants or
otherwise
represents that (i) any Option granted under this Plan shall be
considered an
Incentive Stock Option for applicable tax purposes, or (ii)
favorable or
desirable tax treatment or characterization will be applicable in
respect of
any Option.
3. Purchase Price. The price per share to be paid by the
Optionee for
the shares subject to this Option (the "Exercise Price") shall be
as specified
on Schedule A, which price shall be an amount not less than the
Fair Market
Value of a share of Stock as of the Date of Grant (as defined in
Section 9
below) if the Option is an Incentive Stock Option.
4. Exercise Terms. The Optionee must exercise the Option
for at least
the lesser of 100 shares or the number of shares of Vested Stock
as to which
the Option remains unexercised. In the event this Option is not
exercised with
respect to all or any part of the shares subject to this Option
prior to its
expiration, the shares with respect to which this Option was not
exercised
shall no longer be subject to this Option.
5. Restrictions on Transferability. No Option shall be
transferable by
an Optionee other than by will or the laws of descent and
distribution;
provided, however non-Incentive Stock Options may also be
transferred, pursuant
to a Qualified Domestic Relations Order. During the lifetime of
an Optionee,
Options shall be exercisable only by such Optionee (or by such
Optionee's
guardian or legal representative, should one be appointed).
6. Notice of Exercise of Option. This Option may be
exercised by the
Optionee, or by the Optionee's administrators, executors or
personal
representatives, by a written notice (in substantially the form
of the Notice
of Exercise attached hereto as Schedule B) signed by the
Optionee, or by such
administrators, executors or personal representatives, and
delivered or mailed
to the Company as specified in Section 12(c) hereof to the
attention of the
President or such other officer as the Company may designate.
Any such notice
shall (a) specify the number of shares of Stock which the
Optionee or the
Optionee's administrators, executors or personal representatives,
as the case
may be, then elects to purchase hereunder, (b) contain such
information as may
be reasonably required pursuant to Section 10 hereof, and (c) be
accompanied by
(i) a certified or cashier's check payable to the Company in
payment of the
total Exercise Price applicable to such shares as provided
herein, (ii) shares
of Stock owned by the Optionee and duly endorsed or accompanied
by stock
transfer powers having a Fair Market Value equal to the total
Exercise Price
applicable to such shares purchased hereunder, or (iii) a
certified or
cashier's check accompanied by the number of shares of Stock
whose Fair Market
Value when added to the amount of the check equals the total
Exercise Price
applicable to such shares purchased hereunder. Upon receipt of
any such notice
and accompanying payment, and subject to the terms hereof, the
Company agrees
to issue to the Optionee or the Optionee's administrators,
executors or
personal representatives, as the case may be, stock certificates
for the number
of shares specified in such notice registered in the name of the
person
exercising this Option.
7. Adjustment in Option. The number of shares of stock,
subject to this
Option, the Exercise Price and other matters are subject to
adjustment during
the term of this Option in accordance with the Plan.
8. Termination of Employment.
(a) Except as otherwise specified in Schedule A, in
the event of the
termination of the Optionee's employment with the Company or any
of its
Subsidiaries, other than a termination that is either (i) For
Cause, (ii)
voluntary on the part of the Optionee and without written consent
of the
Company, or (iii) for reasons of death or Disability or
retirement, the
Optionee (or his or her personal representative) may exercise
this Option at
any time within thirty (30) days after such termination to the
extent of the
number of shares which were Purchasable hereunder at the date of
such
termination.
(b) Except as otherwise specified in Schedule A, in
the event of a
termination of the Optionee's employment that is either (i) For
Cause or (ii)
voluntary on the part of the Optionee and without the written
consent of the
Company, this Option, to the extent not previously exercised,
shall terminate
immediately and shall not thereafter be or become exercisable.
(c) Except as otherwise provided in Schedule A, in the
event of the
retirement of the Optionee at the normal retirement date as
prescribed from
time to time by the Company or any Subsidiary, the Optionee shall
continue to
have the right to exercise any Options for shares which were
Vested at the date
of the Optionee's retirement. This Option does not confer upon
the Optionee
any right with respect to continued employment by the Company or
by any of its
Subsidiaries. This Option shall not be affected by any change of
employment so
long as the Optionee continues to be an employee of the Company
or one of its
Subsidiaries.
(d) Except as otherwise specified in Schedule A, in
the event of
termination of employment because of the Optionee's becoming a
Disabled
Optionee, the Optionee (or his or her personal representative)
may exercise
this Option, within a period ending on the earlier of (a) the
last day of the
one (1) year period following the beginning of Optionee's
Disability or (b) the
expiration date of this Option, to the extent of the number of
shares which
were Purchasable hereunder at the date of such termination.
(e) Except as otherwise set forth in Schedule A with
respect to the
rights of the Optionee upon termination of employment under
Section 8(a) above,
in the event of the Optionee's death while employed by the
Company or any of
its Subsidiaries or within three (3) months after a termination
of such
employment (if such termination was neither (i) For Cause nor
(ii) voluntary on
the part of the Optionee and without the written consent of the
Company), the
appropriate persons described in Section 6 hereof or persons to
whom all or a
portion of this Option is transferred in accordance with Section
5 hereof may
exercise this Option at any time within a period ending on the
earlier of (a)
the last day of the one (1) year period following the Optionee's
death or (b)
the expiration date of this Option. If the Optionee was an
employee of the
Company at the time of death, this Option may be so exercised to
the extent of
the number of shares that were Vested hereunder at the date of
death. If the
Optionee's employment terminated prior to his or her death, this
Option may be
exercised only to the extent of the number of shares covered by
this Option
which were Vested hereunder at the date of such termination.
9. Date of Grant. This Option was granted by the Board of
Directors of
the Company on the date set forth in Schedule A (the "Date of
Grant").
10. Compliance with Regulatory Matters. The Optionee
acknowledges that
the issuance of capital stock of the Company is subject to
limitations imposed
by federal and state law and the Optionee hereby agrees that the
Company shall
not be obligated to issue any shares of Stock upon exercise of
this Option that
would cause the Company to violate any law or any rule,
regulation, order or
consent decree of any regulatory authority (including without
limitation the
Securities and Exchange Commission) having jurisdiction over the
affairs of the
Company. The Optionee agrees that he or she will provide the
Company with such
information as is reasonably requested by the Company or its
counsel to
determine whether the issuance of Stock complies with the
provisions described
by this Section 10.
11. Restriction on Disposition of Shares. The shares
purchased pursuant
to the exercise of an Incentive Stock Option shall not be
transferred by the
Optionee except pursuant to the Optionee's will, or the laws of
descent and
distribution, until such date which is the later of two (2) years
after the
grant of such Incentive Stock Option or one (1) year after the
transfer of the
shares to the Optionee pursuant to the exercise of such Incentive
Stock Option.
12. Miscellaneous.
(a) This Agreement shall be binding upon the parties
hereto and
their representatives, successors and assigns.
(b) This Agreement is executed and delivered in, and
shall be
governed by the laws of, the State of Delaware, without regard to
conflicts of
laws principles.
(c) Any notice, request, document or other
communication required or
permitted to be given hereunder shall be deemed given, and any
elections or
exercises to be made or accomplished shall be deemed made or
accomplished, upon
actual delivery thereof to the designated recipient, or three (3)
days after
deposit thereof in the United States mail, registered, return
receipt requested
and postage prepaid, addressed, if to the Optionee, at the
address set forth
below his or her signature and, if to the Company, to its
executive offices at
7060 South Yale Avenue, Suite 603, Tulsa, Oklahoma 74136.
(d) This Agreement may not be modified except in
writing executed by
each of the parties hereto.
(e) This Agreement, together with the Plan, contains
the entire
understanding with the parties hereto and supersedes any prior
understanding
and/or written or oral agreement between them respecting the
subject matter
hereof.
(f) The parties hereto agree that the provisions of
this Agreement
are severable and the invalidity or unenforceability of any
provision in whole
or in part shall not effect the validity or enforceability of any
enforceable
part of such provision or any other provisions hereof.
(g) The section headings herein are included solely
for convenience
of reference and shall not control the meaning or interpretation
of any of the
provisions of this Agreement.
(h) No waiver of any breach or default hereunder shall
be considered
valid unless in writing, and no such waiver shall be deemed a
waiver of any
subsequent breach or default of the same or similar nature.
(i) This Agreement may be executed in one or more
counterparts, each
of which shall be deemed an original but all of which together
shall constitute
one and the same instrument.
IN WITNESS WHEREOF, the Company has caused this Stock Option
Agreement to
be executed on its behalf and the Optionee has executed this
Agreement, all as
of the day and year first above written.
KINARK CORPORATION
Attest:
By:
Title:
Secretary
OPTIONEE
Name:
Address:
<PAGE>
SCHEDULE A
TO
STOCK OPTION AGREEMENT
BETWEEN
KINARK CORPORATION
AND
[Name of Optionee]
Dated:
1. Number of shares of stock Subject to Option:
shares of
stock.
2. This Option (Check one) [ ] is [ ] is not an Incentive Stock
Option.
3. Option Exercise Price: $ per share.
4. Date of Grant:
5. Option Vesting Schedule:
Check one:
( ) Options are exercisable with respect to all shares
on or after
the date hereof
( ) Options are exercisable with respect to the number
of shares
indicated below on or after the date indicated
next to the
number of shares:
No. of Shares Vesting Date
6. Option Exercise Period:
Check One:
( ) All options expire and are void unless exercised
on or before
.
( ) Options expire and are void unless exercised on or
before the
date indicated next to the number of shares:
No. of Shares Expiration Date
7. Effect of Termination of Employment of Optionee (if
different from that
set forth in Section 8 of the Stock Option Agreement): <PAGE>
SCHEDULE B
NOTICE OF EXERCISE
The undersigned hereby notifies Kinark Corporation (the
"Company") of this
election to exercise the undersigned's stock option to purchase
shares of the Company's common stock, par value $.10 per share
(the "Common
Stock"), pursuant to the Stock Option Agreement (the "Agreement")
between the
undersigned and the Company dated . Accompanying this
Notice is (1) a
check in the amount of $ payable to the Company, and/or
(2)
_______________ shares of the Company's Common Stock presently
owned by the
undersigned and duly endorsed or accompanied by stock transfer
powers, having
an aggregate Fair Market Value (as defined in the Kinark
Corporation 1996 Stock
Option Plan) as of the date hereof of $_____________, such
amounts being equal,
in the aggregate, to the purchase price per share set forth in
Section 3 of the
Agreement multiplied by the number of shares being purchased
hereby (in each
instance subject to appropriate adjustment pursuant to Section 7
of the
Agreement).
IN WITNESS WHEREOF, the undersigned has set his hand and
seal, this
day of .
OPTIONEE [OR OPTIONEE'S
ADMINISTRATOR, EXECUTOR
OR PERSONAL REPRESENTATIVE]
Name:
Position (if other than Optionee):
EXHIBIT 4.4<PAGE>
FORM OF STOCK
OPTION AGREEMENT
FOR
NON-EMPLOYEE DIRECTORS
KINARK CORPORATION
STOCK OPTION AGREEMENT
FOR
NON-EMPLOYEE DIRECTORS
THIS STOCK OPTION AGREEMENT (this "Agreement") is entered
into as of the
1st day of July, ______, by and between Kinark Corporation, a
Delaware
corporation (the "Company"), and _________________ (the
"Optionee").
W I T N E S S E T H:
WHEREAS, on April 1, 1996, the Board of Directors of the
Company adopted a
stock option plan known as the "Kinark Corporation 1996 Stock
Option Plan" (the
"Plan"), and recommended that the Plan be approved by the
Company's
stockholders; and
WHEREAS, on June 5, 1996, the stockholders of the Company
approved the
Plan; and
WHEREAS, the Plan provides for automatic annual grants of
stock options to
Non-Employee Directors of the Company and Optionee is a
Non-Employee Director;
and
WHEREAS, the Company and the Optionee desire to enter into
this Stock
Option Agreement in accordance with the Plan.
NOW, THEREFORE, as an incentive to continue as a director of
the Company
and to encourage stock ownership, and also in consideration of
the mutual
covenants contained herein, the Company and the Optionee hereby
agree as
follows:
1. Incorporation of Plan. The option which is the subject
of this
Agreement is granted pursuant to the provisions of the Plan and
the terms and
definitions of the Plan are incorporated herein by reference and
made a part
hereof. Capitalized terms not defined herein shall have the
meanings ascribed
to them in the Plan. A copy of the Plan has been delivered to,
and receipt is
hereby acknowledged by, the Optionee. Notwithstanding anything
in this
Agreement to the contrary, to the extent the terms of this
Agreement conflict
with or otherwise attempt to exceed the authority set forth under
the terms of
the Plan, the Plan shall govern and control in all respects.
2. Grant of Option. Subject to the terms, restrictions,
limitations and
conditions stated herein and under the Plan, the Company hereby
evidences its
grant to the Optionee, not in lieu of salary or other
compensation, of the
right and option (the "Option") to purchase all or any part of
Five Thousand
(5,000) shares of the Company's Common Stock, par value $.10 per
share (the
"Stock"). This Option is granted under the Plan as of July 1,
______ (the
"Date of Grant"). The Option shall vest and be exercisable as to
all of the
Stock subject to this Option on January 1, _____, six months from
the Date of
Grant. The Option shall expire and shall no longer be
exercisable as of July
1, _____, ten years from the Date of Grant, or on such earlier
date as
determined pursuant to Section 8 hereof. The Option is not an
Incentive Stock
Option and is not intended to comply with Section 422 of the
Internal Revenue
Code of 1986, as amended.
3. Purchase Price. The price per share to be paid by the
Optionee for
the shares of Stock subject to this Option (the "Exercise Price")
shall be
$_____________, which price is the Fair Market Value of a share
of Stock as of
the Date of Grant.
4. Exercise Terms. The Optionee must exercise the Option
for at least
the lesser of 100 shares of Stock or the number of shares of
vested Stock as to
which the Option remains unexercised. In the event this Option
is not
exercised with respect to all or any part of the shares of Stock
subject to
this Option prior to its expiration, the shares of Stock with
respect to which
this Option was not exercised shall no longer be subject to this
Option.
5. Restrictions on Transferability. No Option shall be
transferable by
an Optionee other than by will or the laws of descent and
distribution or
pursuant to a Qualified Domestic Relations Order. During the
lifetime of the
Optionee, the Option shall be exercisable only by the Optionee
(or by such
Optionee's guardian or legal representative, should one be
appointed).
6. Notice of Exercise of Option. This Option may be
exercised by the
Optionee, or by the Optionee's administrators, executors or
personal
representatives, by a written notice (in substantially the form
of the Notice
of Exercise attached hereto as Schedule A) signed by the
Optionee, or by such
administrators, executors or personal representatives, and
delivered or mailed
to the Company as specified in Section 10(c) hereof to the
attention of the
President or such other officer as the Company may designate.
Any such notice
shall (a) specify the number of shares of Stock which the
Optionee or the
Optionee's administrators, executors or personal representatives,
as the case
may be, then elects to purchase hereunder, (b) contain such
information as may
be reasonably required pursuant to Section 9 hereof, and (c) be
accompanied by
(i) a certified or cashier's check payable to the Company in
payment of the
total Exercise Price applicable to such shares as provided
herein, (ii) shares
of Stock owned by the Optionee and duly endorsed or accompanied
by stock
transfer powers having a Fair Market Value equal to the total
Exercise Price
applicable to the shares of Stock purchased hereunder, or (iii) a
certified or
cashier's check accompanied by the number of shares of Stock
whose Fair Market
Value when added to the amount of the check equals the total
Exercise Price
applicable to such shares of Stock purchased hereunder. Upon
receipt of any
such notice and accompanying payment, and subject to the terms
hereof, the
Company agrees to issue to the Optionee or the Optionee's
administrators,
executors or personal representatives, as the case may be, stock
certificates
for the number of shares of Stock specified in such notice
registered in the
name of the person exercising this Option.
7. Adjustment in Option. The number of shares of Stock
subject to this
Option, the Exercise Price and other terms and conditions of the
Option are
subject to adjustment during the term of this Option in
accordance with the
Plan.
8. Termination.
(a) In the event the Optionee ceases to be a Director
by reason of
his or her death or Disability, the Optionee or the Optionee's
administrators,
executors or personal representatives may exercise the Option on
the earlier of
(i) the last day of the one-year period following the Optionee's
death or the
beginning of the Optionee's Disability or (ii) the expiration of
the Option.
(b) In the event Optionee ceases to be a Director for
any reason
other than his or her death or Disability, the Optionee may
exercise his or her
Option on the earlier of (i) the last day of the two-year period
following the
date the Optionee ceases to be a Director or (ii) the expiration
of the Option.
9. Compliance with Regulatory Matters. Optionee
acknowledges that the
issuance of capital stock of the Company is subject to
limitations imposed by
federal and state law and the Optionee hereby agrees that the
Company shall not
be obligated to issue any shares of Stock upon exercise of this
Option that
would cause the Company to violate any law or any rule,
regulation, order or
consent decree of any regulatory authority (including without
limitation the
Securities and Exchange Commission) having jurisdiction over the
affairs of the
Company. The Optionee agrees that he or she will provide the
Company with such
information as is reasonably requested by the Company or its
counsel to
determine whether the issuance of Stock complies with the
provisions of federal
and state law described by this Section 9.
10. Miscellaneous.
(a) This Agreement shall be binding upon the parties
hereto and
their representatives, successors and assigns.
(b) This Agreement shall be governed by the laws of
the State of
Delaware, without regard to conflicts of laws principles.
(c) Any notice, request, document or other
communication required or
permitted to be given hereunder shall be deemed given, and any
elections or
exercises to be made or accomplished shall be deemed made or
accomplished, upon
actual delivery thereof to the designated recipient, or three (3)
days after
deposit thereof in the United States mail, registered, return
receipt requested
and postage prepaid, addressed, if to the Optionee, at the
address set forth
below his or her signature and, if to the Company, to its
executive offices at
7060 South Yale Avenue, Suite 603, Tulsa, Oklahoma 74136.
(d) This Agreement may not be modified or amended
except in a
writing executed by each of the parties hereto.
(e) This Agreement, together with the Plan, contains
the entire
understanding of the parties hereto and supersedes any prior
understanding
and/or written or oral agreement between them respecting the
subject matter
hereof.
(f) The parties hereto agree that the provisions of
this Agreement
are severable and the invalidity or unenforceability of any
provision in whole
or in part shall not effect the validity or enforceability of any
enforceable
part of such provision or any other provisions hereof.
(g) The section headings herein are included solely
for convenience
of reference and shall not control the meaning or interpretation
of any of the
provisions of this Agreement.
(h) No waiver of any breach or default hereunder shall
be considered
valid unless in writing, and no such waiver shall be deemed a
waiver of any
subsequent breach or default of the same or similar nature.
(i) This Agreement may be executed in one or more
counterparts, each
of which shall be deemed an original and all of which together
shall constitute
one and the same instrument.
IN WITNESS WHEREOF, the Company has caused this Agreement to
be executed
on its behalf and the Optionee has executed this Agreement, all
as of the day
and year first above written.
KINARK CORPORATION
Attest:
By:
Title:
Secretary
OPTIONEE
Name:
Address:
<PAGE>
SCHEDULE A
NOTICE OF EXERCISE
The undersigned hereby notifies Kinark Corporation (the
"Company") of this
election to exercise the undersigned's stock option to purchase
shares of the Company's common stock, par value $.10 per share
(the "Common
Stock"), pursuant to the Stock Option Agreement (the "Agreement")
between the
undersigned and the Company dated . Accompanying this
Notice is (1) a
check in the amount of $ payable to the Company, and/or
(2)
_______________ shares of the Company's Common Stock presently
owned by the
undersigned and duly endorsed or accompanied by stock transfer
powers, having
an aggregate Fair Market Value (as defined in the Kinark
Corporation 1996 Stock
Option Plan) as of the date hereof of $_____________, such
amounts being equal,
in the aggregate, to the purchase price per share set forth in
Section 3 of the
Agreement multiplied by the number of shares being purchased
hereby (in each
instance subject to appropriate adjustment pursuant to Section 7
of the
Agreement).
IN WITNESS WHEREOF, the undersigned has set his hand and
seal, this
day of .
OPTIONEE [OR OPTIONEE'S
ADMINISTRATOR, EXECUTOR
OR PERSONAL REPRESENTATIVE]
Name:
Position (if other than Optionee):
EXHIBIT 5.1<PAGE>
LAW OFFICES
NELSON MULLINS RILEY & SCARBOROUGH, L.L.P.
A REGISTERED LIMITED LIABILITY PARTNERSHIP INCLUDING PROFESSIONAL
CORPORATIONS
400 COLONY SQUARE, SUITE 2200
1201 PEACHTREE STREET, N.E.
ATLANTA, GEORGIA 30361
TELEPHONE (404) 817-6000
TELECOPIER (404) 817-6050
OTHER
OFFICES:
Charleston,
South Carolina
Charlotte,
North Carolina
Columbia, South
Carolina
Florence, South
Carolina
Greenville,
South Carolina
Myrtle Beach,
South Carolina
November 1, 1996
Kinark Corporation
7060 South Yale Avenue
Tulsa, Oklahoma 74136
Ladies and Gentlemen:
We have acted as counsel to Kinark Corporation, a Delaware
corporation
(the "Company"), in connection with (i) the filing of a
Registration Statement
on Form S-8 (the "Registration Statement") under the Securities
Act of 1933, as
amended (the "Securities Act"), covering the offering of up to
800,000 shares
(the "Shares") of the Company's common stock, $.10 par value per
share, which
may be issued by the Company upon the exercise of stock options
and stock
appreciation rights under its 1996 Stock Option Plan and (ii) the
preparation
of a prospectus under Section 10(a) under the Securities Act (the
"Prospectus")
which forms a part of the Registration Statement. In connection
therewith, we
have examined such corporate records, certificates of public
officials and
other documents and records as we have considered necessary or
proper for the
purpose of this opinion.
This opinion is limited by and is in accordance with the
January 1, 1992,
edition of the Interpretive Standards applicable to Legal
Opinions to Third
Parties in Corporate Transactions adopted by the Legal Opinion
Committee of the
Corporate and Banking Law Section of the State Bar of Georgia.
Based on the foregoing, and having regard to legal
considerations which we
deem relevant, we are of the opinion that the Shares, when issued
and delivered
in accordance with the terms of the Prospectus forming a part of
the
Registration Statement, will be legally issued, fully paid and
nonassessable.
We hereby consent to the filing of this opinion as an
exhibit to the
Registration Statement.
Very truly yours,
Nelson Mullins Riley & Scarborough,
L.L.P.
/s/ Nelson Mullins Riley &
Scarborough, L.L.P.
EXHIBIT 15.1<PAGE>
October 18, 1996
Kinark Corporation
7060 South Yale
Tulsa, Oklahoma
We have made a review, in accordance with standards established
by the American
Institute of Certified Public Accountants, of the unaudited
interim financial
information of Kinark Corporation and subsidiaries for the
periods ended March
31, 1996 and 1995 and June 30, 1996 and 1995, as indicated in our
reports dated
May 10, 1996 and August 9, 1996, respectively, which both include
an
explanatory paragraph discussing the Company's adoption of
Statements of
Financial Accounting Standards No. 121 and 123; because we did
not perform an
audit, we expressed no opinion on that information.
We are aware that our reports referred to above, which were
included in your
Quarterly Reports on Form 10-Q for the quarters ended March 31,
1996, as
amended, and June 30, 1996 are being used in this Registration
Statement.
We are also aware that the aforementioned reports, pursuant to
Rule 436(c)
under the Securities Act of 1933, are not considered a part of
the Registration
Statement prepared or certified by an accountant or a report
prepared or
certified by an accountant within the meaning of Sections 7 and
11 of that Act.
/s/ Deloitte & Touche LLP
Deloitte & Touche LLP
EXHIBIT 23.1<PAGE>
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration
Statement of
Kinark Corporation on Form S-8 of our reports dated February 27,
1996, except
as to the second paragraph of the Long-Term Debt footnote for
which the date is
April 1, 1996 (which expresses an unqualified opinion and
includes explanatory
paragraphs relating to the adoption of Statement of Financial
Accounting
Standards No. 109, and the acquisition of Rogers Galvanizing
Company and the
related private placement financing that occurred subsequent to
December 31,
1995), appearing in the Annual Report on Form 10-K of Kinark
Corporation for
the year ended December 31, 1995, as amended.
/s/ Deloitte & Touche LLP
Tulsa, Oklahoma
October 18, 1996
